Provided to students at the University of Münster and Unversity of Osnabrück.

1. U.S. Constitutional Law
Page 1
Federalism
American Federalism
"The States should be left to do whatever acts they can do as well as the
General Government." --Thomas Jefferson

2. U.S. Constitutional Law
Page 2
Federalism
Goals of this Lecture
Show division of power
between states and federal
government: Federalism
Explain how battles over
concurrent power are settled
Illustrate how spending
power can be used to get
around federalism limitations

3. U.S. Constitutional Law
Page 3
Federalism
What is Federalism?
Federalism divides power
between national and
state governments
Federalism addresses
two main questions:
What power does each
level of government have?
Who should pay for
exercising that power?
Join, or Die by Benjamin Franklin,
published to encourage the former
colonies to unite against British rule

4. U.S. Constitutional Law
Page 4
Federalism
The Foundation of Federalism
To understand
American federalism, one
must understand:
express powersexpress powers
implied powersimplied powers
the meaning of the SupremacySupremacy
ClauseClause
the meaning of the 1010thth
AmendmentAmendment

5. U.S. Constitutional Law
Page 5
Federalism
Sources of Federal (Granted) Power
Express Federal PowersExpress Federal Powers
Article 1, Sec. 7 (lawmaking);
Section 8 (limited powers)
Implied Federal PowersImplied Federal Powers
Necessary & Proper Clause
Inherent Federal Powers
preamble of the U.S. Constitution
“establish justice, insure domestic tranquility, provide for the common
defense, promote the general welfare, and secure the blessings of liberty”

6. U.S. Constitutional Law
Page 6
Federalism
Prohibited Powers
Prohibited Powers: Federal
Government
see Article 1, Section 9Article 1, Section 9
What are they talking about in clause 1?
How does the 16th Amendment change clause 4?
Prohibited Powers: State Government
see Article 1, Section 10Article 1, Section 10
The 10th Amendment – those power
not given to federal government belong
to the states.

7. U.S. Constitutional Law
Page 7
Federalism
Sources of State (Reserved) Powers
Reserved PowersReserved Powers – those
powers not given to the federal
government by the Constitution
Look at Art. 1, Sec. 8. What
powers that we normally associate
with government are not
mentioned?
Do any of these powers fall under
a broad interpretation of the
commerce clause?
For comparison see GG Art. 70 –
74
Health & Safety
Intrastate
commerce
Elections
Family Law
Education

8. U.S. Constitutional Law
Page 8
Federalism
Concurrent PowersConcurrent Powers
Powers that both
the national and
federal government
can exercise.
Combination of Art
I, Sec. 8, 9 &10
Plus 10th
Amendment.

9. U.S. Constitutional Law
Page 9
Federalism
Who is Supreme?
The Supremacy ClauseSupremacy Clause:
“Constitution and the Laws of the United
States . . . shall be the Supreme Law of
the Land; and the Judges in every State
shall be bound thereby.”
Article VI, United States Constitution
Prerequisite = federal
government has the power to
act.
If no power to act, no conflict.
The state law prevails.
“Diese Verfassung...,[und] Gesetze der
Vereinigten Staaten...sind das oberste
Gesetz des Landes; und die Richter in
jedem Einzelstaat sind...daran gebunden.”

10. U.S. Constitutional Law
Page 10
Federalism
Cliqr Question
1) Under Federalism:
a) The federal government has the most power
b) The state government have the most power
c) Power is divided according to the constitution
d) None of the above

11. U.S. Constitutional Law
Page 11
Federalism
The Preemption Doctrine
Court created doctrine
Used when both federal
and state law regulate the
same conduct
Preemption = federal law
is supreme to state law
and is the one that must
be followed.

12. U.S. Constitutional Law
Page 12
Federalism
Types of Preemption
ExpressExpress – Congress specifically
says its law should be followed
and not the state’s.
Can also say states are welcome
to regulate as well.
ImpliedImplied – Congress intends its
law to be superior
The federal law is so
comprehensive in a field of law that
there is no room for state laws
It is impossible to comply with
obligations imposed by both laws
because they have conflicting
commands.
The state law creates an obstacle
to reaching the goal of the federal
law.

13. U.S. Constitutional Law
Page 13
Federalism
Express Preemption
Airline Deregulation Act of 1978 -
“No State . . . shall enact or
enforce any law, rule, regulation,
standard or other provision having
the force and effect of law relating
to rates, routes, or services of any
air carrier.”
Plaintiff's were members of American
Airlines' frequent flier program.
They sued under the Illinois Consumer
Fraud Law after AA had changed the rules
of the program.
AA claimed the Ill. law was preempted by
federal law.
Court (5-3) agreed with AA, stating there
was express preemption.
NOTE – state contract claims still exist!

14. U.S. Constitutional Law
Page 14
Federalism
(Implied) Field Preemption(Implied) Field Preemption
Where Congress has
acted in way to show that
it intends to occupy an
entire field of regulation.
Hines v. Davidowitz (1941)
Federal government runs system
that registers foreigners.
Pennsylvania passes law requiring
foreigners to register every year,
even though federal law only
required foreigners to register once.
Supreme Court ruled Congress
enacted a “complete” registration
system that leaves no room for
additional state requirements.
State law is preempted by federal
law.

15. U.S. Constitutional Law
Page 15
Federalism
Conflict PreemptionConflict Preemption
State and federal law are
mutually exclusive.
impossible to fulfill
obligation under conflicting
laws!
McDermott v. Wisconsin
(1913)
Federal law requires
ingredients to be on maple
syrup bottles.
Wisconsin law requires no
ingredients to be listed.
Court says Supremacy Clause
settles conflict = federal law
preempts state law.
NOTE – under current
precedent, no preemption
if conflict involves
refraining from acts.

16. U.S. Constitutional Law
Page 16
Federalism
Obstacle PreemptionObstacle Preemption
Controversial doctrine
Sometimes viewed as part of field
preemption, other times as part of
conflict preemption.
TEST - state “stands as an
obstacle” to the federal objective.
Focus here is the intent of
Congress.
General Rule
Federal law is viewed as floor,
not ceiling → states can add to
federal law, but only if doing
does not create an obstacle to
the purpose of federal law.
EXAMPLE – state law that
creates more work for federal
agency might be seen as an
obstacle.
See Buckman Co. v. Plaintiffs Legal
Committee (2001)

17. U.S. Constitutional Law
Page 17
Federalism
Geier v. Honda Motor Co. (2000)
Geier suffered injuries in Honda without
driver's side air-bag & sued under state law
claiming Honda was negligent for making
care without driver's side airbag.
Federal Vehicle Safety Standard (FMVSS)
require some but not all vehicles to be
equipped with passive restraints like airbags.
Congress gave companies flexibility to
encourage gradual introduction of new safety
technology in the face of public resistance.
HELD - imposing a duty under state law to
install airbags would create obstacle to
gradual introduction of safety devices goal.
NOTE – defining Congress’s
goal is key to this analysis.

18. U.S. Constitutional Law
Page 18
Federalism
Chamber of Commerce v. Whiting (2011)
Federal law → illegal to hire
immigrants without work
permit.
States cannot also make it
crime but can make complying
with law condition of getting
state business license.
Arizona law allows for
suspension of business
license for employing workers
with no work permit.
Held – federal law expressly allows
states to use licensing power in
this manner. Doing so does not
create an obstacle to Congress
goal. If anything it achieves the
same goal without creating any
burden on federal government.
Federal program that allows
employers to verify the
immigration status of their
employees.

19. U.S. Constitutional Law
Page 19
Federalism
Federalism
Using Arizona v. United States
To Learn About Preemption

20. U.S. Constitutional Law
Page 20
Federalism
Preemption in Action: Arizona v. U.S.
After President Obama
creates different priorities
for enforcing federal
immigration laws, states
attempt to enforce
immigration law
themselves.
Arizona passed law giving state
officers ability to act against people
who were in violation of federal law.
Federal Government sued to stop enforcement of state law

21. U.S. Constitutional Law
Page 21
Federalism
Preemption Questions
Has Congress specifically
said that only it can
undertake this task?
(Express)
Is the federal system for
achieving this task so
comprehensive that there
is no room for state law?
(Implied, Field)
Does both state and federal
law create conflicting
obligations? (conflict)
Does the state’s action
create an obstacle to
achieving the purpose of
federal law or interfere with
the way Congress intended
it to operate? (Obstacle)

22. U.S. Constitutional Law
Page 22
Federalism
§3 State Registration Penalty
cliqr question #2
State crime = fail to register
as an immigrant or to lack
registration papers. §3
AZ: because it is already
a crime under federal law,
state law adds nothing,
no conflict.Federal
Government
runs registration
system.
Federal law
makes failing to
register a crime.
US: registration system is
complete and
comprehensive.

23. U.S. Constitutional Law
Page 23
Federalism
§5: Work Permits
cliqr question #3
State crime to seek work
without permit.
AZ: Congress intent
→ make working
without permit illegal.
State law just fills gap.
US: Congress intent →
no criminal
punishment for
working without permit.
Federal law:
civil fine for
working without
permit
criminal penalty
for hiring
person lacking
permit.

24. U.S. Constitutional Law
Page 24
Federalism
§6 Arrest Law
cliqr question #4
Local police may arrest
anyone they believe might
be in the country without
permission.
Federal law → generally not
crime for removable alien to
remain in U.S..
instead someone suspected of
being in the U.S. illegally is
issued a notice to appear before
an immigration judge.
AZ: state police power
(reserved power) allows it
to detain people who are
in the state illegally.
US: Congress created
strict rules for arrest in
order to protect foreign
relations with other
countries.

25. U.S. Constitutional Law
Page 25
Federalism
Arizona v. United States: The Result
Court: Federal government has broad power over
immigration
Registration System
Congress intended to take
over the field of immigrant
registration.
“complete”
“single integrated and all-
embracing system”
Work Permit
Congress only created civil
penalty for working w/out
permit.
Intent was no criminal
penalty!
State law creates criminal
penalty = obstacle to intent
of Congress

26. U.S. Constitutional Law
Page 26
Federalism
Arizona v. United States: The Result
Warrantless arrests
Federal law provides
scheme for removal of
aliens.
Arrest is rarely part of this
scheme.
State creates an obstacle
to scheme by allowing for
widespread arrests.
Dissent (Alito)
State law that is
inconsistent with
enforcement practices
does not amount to pre-
emption.
Dissent (Scalia)
States have concurrent
power to regulate illegal
immigration.

27. U.S. Constitutional Law
Page 27
Federalism
The Preemption Debate
Debate over preemption
is usually shaped by
views on state vs. federal
power.
Narrow federal preemption
= more power to the states.
Broad federal preemption =
more power to federal
government.

28. U.S. Constitutional Law
Page 28
Federalism
The 10th
Amendment and the
Anti-Commandeering
Doctrine

29. U.S. Constitutional Law
Page 29
Federalism
Tenth Amendment
“The powers not
delegated to the United
States by the Constitution,
nor prohibited by it to the
States, are reserved to
the States respectively, or
to the people.”
Tenth Amendment to the United
States Constitution.
Issue – does this place limits
on federal government or
simply state how powers are
to be divided?
Die Machtbefugnisse, die von der
Verfassung weder den Vereinigten
Staaten übertragen noch den
Einzelstaaten entzogen werden,
bleiben den Einzelstaaten oder
dem Volke vorbehalten.

30. U.S. Constitutional Law
Page 30
Federalism
10th
Amendment Competing Views
Dual FederalismDual Federalism (or dual
sovereignty)
federal government and
states are co-equals
(“equal sovereignty”)
narrow reading of federal
power = more power for
states
Cooperative FederalismCooperative Federalism
national government is
supreme over the states
broad reading of federal
power leaves little room for
10th
Amendment.
10th
Amendment itself is not
a limit on federal power.

31. U.S. Constitutional Law
Page 31
Federalism
Current View: Anti-Commandeering
States must follow federal law, but . . .
The Federal government cannot force states to enact laws or
prohibit them from doing so.
New York v. United States; Murphy v. NCAA
The Federal government cannot force states to enforce
federal law.
Printz v. United States.
The Federal government cannot compel states to comply with
federal law via spending power.
National Federation of Independent Business v. Sebelius

32. U.S. Constitutional Law
Page 32
Federalism
Reasons for Anti-Commandeering
Protect proper balance between states and federal
government = neither will become too powerful.
Political accountability: keep lines of responsibility clear
= easier for voters to hold them accountable.
Prevents Shifting Costs to the States: Congress must
supply funding for enforcement, cannot pass costs onto
the states.
“Unfunded Mandates”

33. U.S. Constitutional Law
Page 33
Federalism
Anti-Commandeering v. Preemption
Preemption occurs when both the federal government and
states seek to regulate private activity.
Commandeering occurs when the federal government
orders the states to do/not do something.
Key Distinguishing Question – does the federal law seek to
regulate private activity that states also engage in?
If yes, preemption possible.
If no and only states are the target of federal law, then apply anti-
commandeering principles.

34. U.S. Constitutional Law
Page 34
Federalism
New York v. United States (1992)
Facts:
Federal law required states to create
regulatory scheme for safe disposal of
nuclear waste.
Held:
10th Amendment prohibits federal government
from compelling to states to create law.
Rationale:
Political accountability.
Congress mandates, but states might be held
politically accountable. That violated 10th
Amendment.

35. U.S. Constitutional Law
Page 35
Federalism
What Congress Could Do?
Could establish federal
standards that private and
public actors must follow!
Preemption of conflicting
state law.
Could also use spending
power to get states to
follow if there was no
preemption.

36. U.S. Constitutional Law
Page 36
Federalism
Printz v. United States (1997)
Brady Handgun Violence Prevention Act
Signed November 30, 1993
Federal Law required local police
to conduct background checks on
people purchasing guns.
Issue – Can Congress order state
actors to enforce federal law.
Holding – Necessary and Proper
Clause cannot be used to order
state actors to enforce federal law

37. U.S. Constitutional Law
Page 37
Federalism
Printz v. United States
Rationale
Constitution created “dual sovereignty” = states have some
power that cannot be interfered with by Congress.
Thus, 10th
Amendment acts as limit on federal power.
State actors must follow federal law/court rulings under
Supremacy Clause but cannot be ordered (commandeered) to
enforce it
REMEMBER – Congress can still use spending power to
encourage states to act. They just cannot force states to
act.

38. U.S. Constitutional Law
Page 38
Federalism
Another View
Not all Justices agree with the anti-commandeering
principle.
In fact, Justice Breyer has held up Germany as an
example of how having local and state officials carry
out federal law increases state power and creates a
healthy system of federalism.
Printz v. United States, 521 U.S. 898, 976-77 (1997) (Breyer, J.,
dissenting).

39. U.S. Constitutional Law
Page 39
Federalism
Reno v. Condon (2000)
Facts:
Federal Driver’s Privacy Protection Act prohibited states and “other
authorized recipients” from giving out personal information of drivers.
HELD – this did not amount to commandeering.
Law was valid use of commerce clause = license is “article of
interstate commerce.”
Law applied to owners of databases, including states.
Law does not require state to pass law or enforce federal law. It must
merely comply with federal law just like private individuals.

40. U.S. Constitutional Law
Page 40
Federalism
Murphy v. NCAA (2018)
FACTS:
Federal law prohibits states to authorize gambling on sports.
BUT, it does not make sports gambling a federal crime!
Instead allows sports organizations to bring lawsuits against states who
allow sports betting.
Procedural History
Lower courts refused to find federal law unconstitutional
because it did not order states to take any action.

41. U.S. Constitutional Law
Page 41
Federalism
Murphy v. NCAA
HELD – Congress may not prohibit states from passing
laws or regulations.
Rationale
The distinction between ordering and prohibiting is an empty
one.
Cases like Condon are different. There Congress was
regulating behavior (public and private), not ordering states to
do something.

42. U.S. Constitutional Law
Page 42
Federalism
Murphy v. NCAA
Why isn’t this preemption?
Preemption = when both state and federal government seek
to regulate private behavior.
If a law does not grant a right to or restrict in some way private
actors, there is no preemption issue.
In this case no one was granted the right to gamble nor was it
being directly prohibited under federal law.
A different case if federal law banned sports gambling. Then potential
preemption.

43. U.S. Constitutional Law
Page 43
Federalism
Cliqr Question
3) If the federal government wants the states to help it
enforce federal law:
a) The President can order the states to do so
b) Congress can use its spending power to try and induce the
states to act
c) Congress can withhold all federal money from the states to
force states to act
d) Congress can order the states to act

44. U.S. Constitutional Law
Page 44
Federalism
To Summarize
Supremacy Clause – states must follow federal court
orders.
Example – court order to stop discrimination.
Preemption Clause – states must follow/not interfere
with federal law.
Example – states cannot set up their own immigration system.
10th
Amendment – states cannot be forced to enforce
federal law or pass law.